FMC at FCC v. Fox

Yesterday’s Supreme Court arguments on indecency and free speech in FCC v. Fox certainly were a doozy! Get caught up on the backstory here. Don’t worry, we’ll wait for ya. OK, ready?

Amidst the occasional hilarity — since, hey, they were still talking about swearing, Paris Hilton and bare asses — the Court considered two major questions:

1. Are broadcasters’ free speech rights affected by the way the FCC applies its rules of indecency, and,

2. What, if anything, should be done to change how the FCC regulates broadcast television and radio in the future; or is regulation not necessary now.

The FCC’s core argument for maintaining indecency standards on broadcast television and radio centered around preserving a “safe haven” of viewing time, 6am - 10pm, for parents and the public during which all content is safe for general viewing. The FCC characterized the broadcast networks as having a unique responsibility to the public because of their government-issued broadcast licenses.

While Chief Justice Roberts and Justices Scalia and Kennedy certainly supported this argument, there was just as much acknowledgement that government regulation may not matter any longer. Justice Alito asked if this issue shouldn’t “die a natural death” along with the medium since, as Justice Kagen noted, so few people get their television by broadcast, and most don’t even know the difference between broadcast and cable tv these days. Justice Ginsburg commented that cultural norms have changed, and since swearing has become part of common parlance it’s hardly that shocking for most adolescents sitting in front of their TV sets.

Since this case applies to radio as well, numerous Justices were concerned about how lifting indecency rules for television might open the window for radio to become more explicit. Justice Alito asked hypothetically if it would be possible to carve a narrow enough rule that would lift the indecency rules for television but leave them in place for radio.

The FCC came under attack repeatedly for how it has applied its rules and how opaque these rules are to broadcasters bound by them. Fox and ABC each had a veritable goldmine of inconsistencies to point to: how 7 seconds of nudity on “NYPD Blue” had been fined but 40 seconds of nudity in the film Catch-22 had been allowed; how profanity was allowed in an ABC broadcast of Saving Private Ryan but not in a PBS documentary on blues singers, and more. Justice Kagen called this “a serious First Amendment issue,” cracking that “The way that this policy seems to work — it’s like nobody can use dirty words or nudity except for Steven Spielberg.”

The arguments from Fox and ABC varied in that Fox flatly denied the need for regulation by the FCC, whereas ABC was willing to grant the agency authority but with clearer standards in place. At Justice Breyer’s invitation, the attorney arguing for ABC and its affiliates made four suggestions on how to fix the vagueness of the rules. The order of arguments didn’t allow the question to be asked, but I wondered if the FCC would’ve hypothetically agreed to work with the broadcasters to craft tighter and more well-defined indecency standards. After all, as Chief Justice Roberts pointed out: “All the government is asking for are a few channels where you are not going to hear the F-word and the S-word and have nudity.”

We at FMC feel strongly that while the FCC’s intent in regulating content may be admirable, in practice that regulation has been applied arbitrarily and capriciously, and has been detrimental to broadcasters’ free speech rights by chilling creative expression. Read our joint amicus brief with Center for Creative Voices on FCC v. Fox.

For a more detailed rundown of yesterday’s oral arguments, check out scotusblog.

Finally, we encourage you to attend future cases at The Supreme Court of the United States. They’re free to attend and take nothing but an early start and a little patience with the line. Here’s the calendar for oral arguments.

For those who are especially geeky (like us!) and/or aren’t based in DC, you should consider adding Jeffrey Toobin’s The Nine to your reading list.

Why should you bother with all this? Well, as Media Access Project’s Andy Schwartzman pointed out to me yesterday, “This is an opportunity to see one-third of our government in action. In one room.”